Chronicle of the law: A police officer facing a criminal trial fails in his attempt at anonymity

Last week, a Metropolitan Police officer, Imran Mahmood, was named an officer facing grievous bodily harm after a man was paralyzed following the discharge of the officer’s taser. Mr Mahmood was named following an unsuccessful attempt on his part to obtain anonymity on the grounds that his identification was contrary to his right to life under Article 2 of the European Convention on Human Rights. the man.

The court’s power to make such an order derives from the common law and the court’s inherent jurisdiction, but had the application been successful, it would have taken the form of an order under section 11 of the Contempt of Court Act 1981. The request was for the name, address and images of Mr Mahmood which could identify him – if successful, these details would have been withheld in open court and an S.11 order would have been put in place to prevent their publication.

It should be noted at the outset that Article 2, the right to life, is an absolute right and therefore if engaged there is no balancing exercise to be performed, as is the case when we discuss Article 8 (privacy) versus Article 10. (Freedom of expression) – which are qualified rights.

The crux of the claim was that the victim, Mr Walker-Brown, would be related to “criminal elementsand therefore there was a risk to the safety of Mr. Mahmood if he was identified as the officer involved in the criminal proceedings. In support of their request, the police presented a risk assessment relating to the threats faced by Mr. Mahmood.

The request was contested by the prosecution, in addition to 5 media outlets and the AP.

The starting point is that to obtain the order of anonymity on the basis of Article 2, the applicant must demonstrate a risk to life or serious physical harm which is “real and immediate” and supported by “convincing evidence”. Also, evidence of generalized risk of harm is not enough – evidence must show specific identified threats (other than those made on social media).

It is interesting to note the treatment by the courts of threats made online and on social networks, with the judgment of an earlier case (RXG v. Ministry of Defense and others [2020] QB 703), referenced in this case, stating:

“The only evidence of identifiable threats comes from social media and online comments. Without a doubt, these are unpleasant. However, the disinhibiting effect of online publication, often with the benefit of anonymity, is well recognized. It is also, unfortunately, a feature of modern life that individuals are prepared to use language online that they would never use in person and to make threats of a kind that they would never carry out. Such messages can be posted for a number of reasons, and violent and threatening language can be frightening to those it targets. Nevertheless, rhetoric and invective are generally insufficient, without more, to pose a credible threat of violence…”

It is clear that the hurdle to obtaining an order of anonymity on the basis of article 2 is high, and he recognizes the importance for the media of being able to report criminal trials in their entirety.

Senior District Judge Goldspring concluded that the evidence provided in Mr. Mahmood’s case did not reveal a clear and identified threat, with the evidence being rather general, non-specific and speculative. Judge Goldspring also noted that the risk assessment provided by the police should be treated with caution as it was, in his view, “not an objective analysis work“and rather”written to achieve an unidentified reputational purpose” using a standard template.

Judge Goldspring further notes in his written decision that the proposed risk assessment “no analysis, at least no proper specific analysis», instead containing «generic statements about retribution”.

The judgment goes on to state that:

“While the document identifies a legitimate basis for associating the victim with other criminal elements, the suggested risks remain speculative. Nowhere …. whether there are clear threats to life or serious bodily harm by anyone allegedly associated with these criminal elements. Of course, I am not naive to think that those with such associations are not capable of violence or that past events may have demonstrated that someone being a police officer deterred them. This, however, is not the test, it is a quantum leap from the fact that he CAN arrive at convincing proof that such an imminent threat exist in this caseotherwise every gang-related case would deserve an anonymity order, even the plaintiff does not seek to persuade the court that this is a correct approach to such requests.

Additionally, the ruling notes Mr. Mahmood’s unusual position as an on-duty police officer charged with a crime against a member of the community. However, the judge said that “risk of repercussions“facing Mr. Mahmood does not show up”significantly different from those that frequently occur in the context of serious crimes, particularly gang crimes, if that is relevant here”.

In his findings, Justice Goldspring noted that if the risk assessment presented in evidence “identifies a legitimate basis for associating the victim with other criminal elements, the suggested risks remain speculative. Not a single specific threat is highlighted, let alone imminent”.

In the end, it appears Judge Goldspring’s decision in this case was clear – no evidence of a specific, real, and immediate threat meant no order of anonymity.

So, what should we take away from this case?

There have recently been a series of requests in which police officers accused of misconduct or criminality have asked for anonymity. The basis for these claims varied, although the adverse effect on the officer’s health that the publicity would (allegedly) cause was the most popular. While requests for anonymity based on Article 2 grounds are relatively rare, anecdotally they appear to be becoming more common. That said, the law is very clear – the bar for obtaining such an order is high, and this case provides a very useful reminder of the relevant principles and their application.

Imran Mahmood pleaded not guilty when he appeared in court on 28e April.

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